Viacom DMCA driftnet: who?s driving this thing?

The EFF has sued Viacom over a DMCA takedown notice, but Viacom says that it " …

The saga of the Stephen Colbert parody video "Falsiness" gets stranger today. After the EFF filed suit against Viacom in federal court for issuing a YouTube takedown notice for a clip that it did not own, Viacom retorted that it had—probably—done no such thing.

In a letter, a copy of which was sent to Ars Technica, Viacom says that it has looked through its records and can find no evidence that it issued a takedown notice for the clip in question. "We maintain careful records of all our takedown notices, so any takedown notice most likely did not come from us," writes Viacom's executive vice president Michael Fricklas.

EFF attorney Jason Schultz tells Ars that the offending clip was pulled from YouTube with the notice that it was "no longer available due to a copyright claim by Viacom International." "So from our perspective, this is what happened until we are shown evidence otherwise," he says.

But other evidence comes in the form of an email from copyright enforcement company BayTSP. The company was responding to a complaint about the takedown notice from Brave New Films, which created the video, and it admitted that "there were isolated errors" owing to the "more than 100,000 unauthorized clips that needed to be removed from the site." They also directed follow-up questions to the e-mail address VIACOM@baytsp.com.

Finally, the EFF claims that a YouTube lawyer verbally confirmed that the complaint came from Viacom. To the EFF, the entire episode highlights a serious problem: "with Viacom sending more than 160,000 DMCA takedown notices, it may not even be aware which videos it told YouTube to remove. If that's right, then Viacom will inevitably end up censoring some perfectly legitimate videos—surely, the MoveOn/Brave New Films video is not the only example of a fair use that got caught in Viacom's driftnet."

Viacom, for its part, said in the letter that it had "no problem" with the clip. The company also complained that they had not been contacted directly before the court filing, saying that this would have been "less wasteful of scarce judicial resources."

Given that the EFF is sticking by its original claims, those judicial resources may be needed to decide the case after all.